The People of the State of v. Michael Whitfield

State of New York Supreme Court, Appellate Division Third Judicial Department

April 12, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.MICHAEL WHITFIELD, APPELLANT.

Appeal from a judgment of the Supreme Court (R. Sise, J.), rendered November 5, 2010 in Schenectady County, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

The opinion of the court was delivered by: Garry, J.

MEMORANDUM AND ORDER

Calendar Date: March 20, 2012

Before: Mercure, J.P., Lahtinen, Spain, McCarthy and Garry, JJ.

In November 2009, an 11-count indictment was handed up against defendant which included, among other things, multiple counts of criminal possession of a weapon. Ultimately, in November 2010, he pleaded guilty to one count of attempted criminal possession of a weapon in the second degree, waived his right to appeal and was sentenced, pursuant to a plea agreement, to two years in prison followed by three years of postrelease supervision. Defendant appeals and we affirm.

Although defendant's challenge to the voluntariness of his plea survives his valid waiver of appeal, it is unpreserved for this Court's review by his failure to move to withdraw his plea or vacate the judgment of conviction (see People v MartinezVelazquez, 89 AD3d 1318, 1319 [2011]; People v Abrams, 75 AD3d 927, 928 [2010], lv denied 15 NY3d 918 [2010]). Further, although defendant made passing reference to his purported dissatisfaction with counsel, he made no statements during the plea allocution that raised doubts about his guilt or negated any material element of the crime, and thus the narrow exception to the preservation requirement does not apply (see People v Sherman, 91 AD3d 982, 983 [2012]; People v Campbell, 89 AD3d 1279, 1279 [2011]).

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